6. Service Credits
. In the event that ONTEC fails to maintain the foregoing availability of the Licensed Software during any calendar month of the subscription, Licensee's sole and exclusive remedy shall be to request a service credit in the following percentages of the prorated monthly fees paid for the SaaS Offering:
a) for availability less than 99.5%, but greater than 99.0%, a service credit of 15%; or
b) for availability less than 99.0%, a service credit of 20%.
Service credits may be used only to extend the SaaS Offering and shall be applied to Licensee's account at the end of the license term. Licensee acknowledges and agrees that the terms of this section relating to service credits constitute a genuine pre-estimate of the loss or damage that Licensee might suffer as a result of any unavailability of the SaaS Offering and are adequate compensation for any loss or damage caused by any unavailability of the SaaS Offering.
To qualify for a service credit, Licensee must notify ONTEC of the unavailability in accordance with Section 5.1 and file a claim with ONTEC within five (5) business days of the end of the calendar month in which the unavailability occurred. As part of its notification, Licensee shall provide the date and the beginning and end time of each instance of unavailability. Within thirty (30) days of Licensee's request, ONTEC will either deny the request or issue a credit memo acknowledging the credit or extension. Service credit exclusions include, but are not limited to failures caused by the following:
- Factors outside of ONTEC's reasonable control;
- Licensee or third party hardware or software;
- Actions or inaction by Licensee or third parties;
- Licensee's failure to modify its use of the service after being advised to modify its use of the service;
- Use of beta or trial services; or
- Acts or omissions of Licensee, its employees, agents, or contractors, or anyone gaining access to the services by means of Licensee's passwords or equipment.